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TMI Blog2018 (6) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... To permit a re-assessment after the four year period, there should be failure to disclose all full and true material facts, on detection of which alone there could be proceedings u/s 147 - This element of non-disclosure we fail to see in the instant case - thus appeal is rejected - Decided in favor of assessee. - ITA.No. 1123 of 2009 - - - Dated:- 23-5-2018 - MR. K. VINOD CHANDRAN AND MR. ASHOK MENON, JJ. For The APPELLANT : SRI.JOSE JOSEPH And SRI P.K MENON For The RESPONDENT : R BY ADV. SRI.P.BENNY THOMAS, SRI.P.GOPINATH, SRI.K.JOHN MATHAI, SRI.E.K.NANDAKUMAR And SRI.RAJAN P.KALIYATH JUDGMENT Vinod Chandran, J The question of re-opening of assessment under Section 147 of the Income Tax Act is up for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax under the Agricultural Income Tax Act. The Assessing Officer confirmed the proposal of re-assessment which was challenged in First Appeal. 3. The Commissioner of Appeal reversed the order of the Assessing Officer, finding that there cannot be alleged non-disclosure of full and true facts and the Tribunal too affirmed the view of the first appellate authority. The Tribunal found that what was attempted to be done on re-assessment, was to apply an inference which the original Assessing Officer could have drawn from the facts disclosed in the returns and the books of accounts when the original assessment itself was taken up. 4. The learned Senior Counsel appearing for the Revenue would contend that it was the duty of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come tax; in the original assessment. Reliance is also placed on [1961] 41 ITR 201 [Calcutta Discount Co. Ltd. v. Income-tax Officer[ and a decision of this Court reported in [2018] 403 ITR 389 (Ker) [Commissioner of Income-tax v. Tata Ceramics Ltd.] , to draw a parallel to the instant case; in which, according to the learned Senior Counsel, there is absence of disclosure of full and true material facts necessary for assessment; insofar as the apportionment of loss in the very same proportion of apportionment of income under Rule 8 having not been followed by the assessee in the return filed. 6. The learned Counsel appearing for the assessee would argue that the apportionment of income under the Agricultural Income-tax Act and the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to section 147, beyond the period of limitation of four years. One of such contingency is failure to disclose fully and truly all material facts; which is resorted to in the instant re-assessment. 8. The first argument is that the original assessment having not considered the apportionment of loss, in the same proportion as the income; the reassessment beyond four years is not a mere change of opinion. Killick Nixon and Co. and Malegaon Electricity Co. P. Ltd. were relied on to urge that a mere conclusion recorded, in assessment or appeal, cannot be taken as a proper consideration of the various aspects. It is the submission of the learned Senior Counsel appearing for the Revenue that merely because the original assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true facts. The Hon'ble Supreme Court found that the written down value having not been placed before the Assessing Officer there could not be said to be disclosure of all full and true material facts. The matter was remanded to the Tribunal to first examine whether the amounts received as consideration in excess of the written down value could be deemed to be profit and if that question is answered in the affirmative, there could be no flaw found in the reassessment proceedings. The Hon'ble Supreme Court found that the Tribunal was not justified in drawing the inference that the ITO had considered all the relevant facts from a cryptic statement made that there need be no further adjustment made. We do not think the situation in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding was that there could be no allegation raised of non-disclosure of full and true material facts. 12. Tata Ceramics Ltd., referring to Calcutta Discount Co. Ltd., found a distinction on facts but relied on the dictum as laid down by Calcutta Discount Co. Ltd., itself, but on facts upheld the re-assessment in that case. As had already been noticed there was only a portion of the interest income disclosed in the returns. There was hence non-disclosure of full and true material facts which resulted in the re-assessment proceedings being upheld. We are of the opinion that in the present case, the facts are more similar to that in Calcutta Discount Co. Ltd., than that of Tata Ceramics Ltd. 13. We see from the Annexure A1 order that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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